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Relocation: Matters Considered by Courts when Making Relocation or Recovery Orders

How does a Court decide Relocation Cases? 

Courts assess whether or not a parent should be able to either relocate with a child, or for the kids to be ordered to return to their former location of residence (if they have already moved) on a case by case basis, according to the facts of each case.

There aren’t any set hard and fast rules in place unfortunately, which if there were, might help you work out what a Court would do in your situation.

If you read through the sorts of things a Court would look at though, which we set out below, and read through some cases that have actually gone through the Courts to see what the Court did there, you might be able to get a feel or a gut instinct of what might happen in a situation such as your own.

Is there a set distance you are allowed to move with the Child

The short answer is no, there is not.

The proposed (or actual) distance of the relocation is however a major factor for the Court’s consideration.

The further away a parent moves, the harder it will be for the relocating parent to show that it is in the child’s best interests to move that distance away from the other parent, as the contact with the parent left behind, is likely to be much less frequent.

A big issue for the Court will be how much regular time the parent left behind, or proposed to be left behind, has been spending with the Child.

If a Parent hasn’t been spending any physical time at all with a Child for some time, or only school holiday time, then relocation of the other Parent is likely to be less of an issue, as the relocation isn’t likely to have much effect on the relationship between the Child and the Parent left behind.

If a Parent has been spending say either equal time or significant and substantial time, or even regular time during the school term, with a Child and the distance that the other Parent wants to move, will mean that same time won’t be able to be spent, then the proposed relocation becomes more problematic as it will impact the parent left behind having the same ‘meaningful relationship’ with the child, which is a ‘primary consideration’ in the ‘best interests of the child’ factors, as outlined above.

If a parent only wants to relocate an hour or two away, and the other Parent has only been spending alternate weekend time, then that move will have less impact on the relationshp that exists between the parent and the Child.  It can be argued however, especially as the Child approaches their teenage years, that they will want to spend more time with their friends or in an after school job, and be less interested in spending time travelling say 2 hours to see the other parent.

What will a Court Order when faced with a Relocation or Recovery Application

When a matter comes before the Court to make a decision on whether a parent is allowed to relocate with a Child, or whether the relocation should be refused, or a recovery order issued for the children to be returned to the parent who did not move away, the Court will almost always, also make Interim Orders about not only who the Children are to live with, but the time they are to spend with the other Parent.

You can read actual cases on what Courts have Ordered in different relocation or recovery applications, on our website.

If Relocation is allowed, who pays the costs of the Child’s Travel to the other Parent

If a Parent is allowed to relocate with a Child, a big issue often arises as to who pays the costs associated with a Child travelling to spend time with the other Parent.

Again, there are no hard and fast and set rules about what orders a Court will make about this.

Some Judges say if a parent moves away then subject to hearing about the financial circumstances of each party, the relocating parent should pay the costs associated with the Child then having to travel to spend time with the other Parent, especially if it is air travel.

Some Judges will order the costs to be shared, or each parent to take turn about paying for the travel, especially if it is air travel.

If the travelling is going to be done by car, rather than by plane, then the Court will look at the distance to be travelled and any tolls payable, and bear that in mind when deciding on who does pick up or collection, whether they should meet in the middle or at some other point.

Other Judges will look at a range of factors, such as:

  • whether Child support is being paid and if so, how much;
  • the costs of the travel;
  • the financial circumstances of each parent;
  • if a parent has moved to live in a de facto relationship or because of the job transfer of their new de facto or husband/wife, then the financial situation of that family as a whole as compared with the other parent.

What does a Parent have to prove to be able to Relocate

A relocating parent must present good reasons to the court as to why the relocation will be in the ‘best interests of the child‘  (detailed in Section 60CC Family Law Act) and what arrangements they propose for the other parent to have regular and meaningful time with the child.

The Court must keep the ‘best interests of the child’ as the primary consideration. In determining the best interests of the child, the Court must consider:

 

  • the benefit to the Child of having meaningful relationships with both parents – [Section 60CC(2)(a)];
  • the need to protect the Child from physical or psychological harm, or from being subjected or exposed to abuse, neglect or family violence – [Section 60CC(2)(b)].

There is more than that and in fact a list of factors the Court must also look at and assess.

Additional Considerations [Section 60CC(3)] looked at by the Court to decide the Best Interests of Children are:

 



 

  • any views expressed by the Child and any factors (such as the Child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the Child’s views – [Section 60CC(3)(a)];
  • the nature of the relationship of the Child with:
    • each of the Child’s parents – [Section 60CC(3)(b)(i)]; and
    • other persons (including any grandparent or other relative of the Child) – [Section 60CC(3)(b(ii))];
  • the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
    • to participate in making decisions about major long-term issues in relation to the child – [Section 60CC(3)(c)(i)]; and
    • to spend time with the child – [Section 60CC(3)(c)(ii)]; and
    • to communicate with the child – [Section 60CC(3)(c)(iii)];
  • the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child – [Section 60CC(3)(ca)].
  • the likely effect of any changes in the Child’s circumstances, including the likely effect on the Child of any separation from:
    • either of his or her parents – [Section 60CC(3)(d)(i); or
    • any other Child, or other person (including any grandparent or other relative of the Child), with whom he or she has been living – [Section 60CC(3)(d)(ii)];
  • the practical difficulty and expense of a Child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the Child’s right to maintain personal relations and direct contact with both parents on a regular basis – [Section 60CC(3)(e)];
  • the capacity to provide for the all needs (including emotional and intellectual) of the Child, by:
    • each of the Child’s parents – [Section 60CC(3)(f)(i)]; and
    • any other person (including any grandparent or other relative of the Child) – [Section 60CC(3)(f)(ii)];
  • the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the Child and of either of the Child’s parents, and any other characteristics of the Child that the court thinks are relevant – [Section 60CC(3)(g)];
  • if the Child is an Aboriginal Child or a Torres Strait Islander Child:
    • the Child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) – [Section 60CC(3)(h)(i)]; and
    • the likely impact any proposed parenting order will have on that right – [Section 60CC(3)(h)(ii)];
  • the attitude to the Child, and to the responsibilities of parenthood, demonstrated by each of the Child’s parents – [Section 60CC(3)(i)];
  • any family violence involving the Child or a member of the Child’s family – [Section 60CC(3)(j)];
  • if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
    • the nature of the order – [Section 60CC(3)(k)(i)];
    • the circumstances in which the order was made – [Section 60CC(3)(k)(ii)];
    • any evidence admitted in proceedings for the order – [Section 60CC(3)(k)(iii)];
    • any findings made by the court in, or in proceedings for, the order – [Section 60CC(3)(k)(iv)];
    • any other relevant matter – [Section 60CC(3)(k)(v)].
  • whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the Child – [Section 60CC(3)(l)];
  • any other fact or circumstance that the court thinks is relevant – [Section 60CC(3)(m)].

The Act does specifically say it must consider “any other fact or circumstance that the court thinks is relevant” and accordingly, the can also look at:

  • the history of the relationship between each parent and the child;
  • the history of who has exhibited what level of care of the children;
  • the events that have happened since separation and particularly who the child has been living with and how much time has been spent with each parent;
  • the circumstances that have existed since your separation and how that has impacted on the amount of regular time spent with the child.

The Court will balance the above considerations, together with anything else they think is relevant, against the right of freedom of movement of the relocating parent, bearing in mind that the final decision must be what is in the ‘best interests of the child’.

Relocation – More Information

The sorts of things a Court wants to know, this issues and what a considers if they are deciding a case involving a parent who either has already moved away or who wants to move away, is explained in the information sheet How does a court decide Relocation cases if a parent moves away or wants to move away.

If you already have a Court Order or are getting a Court Order then you should also read our information sheet Court Orders & Relocation explained in full.

Our information sheet The other parent might Relocate: Do I need to do anything might also be helpful to you.

Relocation, Domestic & International Child Abduction: More Information

We also have the following pages providing additional information in relation to both Relocation of a Parent with a Child within Australia (domestically) and International Child Abduction:

 

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